Vito Lopez response to JCOPE

7/30/2019 Vito Lopez response to JCOPE

1/71

STATE OF NEW YORKJOINT COMMISION ON PUBLIC ETHICS

----------------------------------------------------------------------- ) {

IN RE JCOPE No. 127

----------------------------------------------------------------------- ){SUBMISSION OF HON. VITO LOPEZ

TO NOTICE OF SUBSTANTIAL BASIS INVESTIGATIONHon. Vito Lopez, Member ofthe New York State Assembly, submits the following in

response to the Notice of Substantial Basis Investigation dated September 21, 2012 ("SubstantialInvest. Notice" or "Notice") by the Joint Commission on Public Ethics ("JCOPE"). As set forthin the Notice, JCOPE has limited Mr. Lopez's response to a written submission

Mr. Lopez has not been given notice of the evidence that may be considered by JCOPE insupport of the claims, nor has he been given discovery, the right to call witnesses, or the right tocross-examine witnesses. He objects to the refusal to allow him to confront the evidence andonce again asks that JCOPE engage in a process that is adversarial (and not inquisitorial) innature and which comports with the minimum standards of due process enshrined in the UnitedStates Constitution, explicitly recognized by the Supreme Court, and imposed on the State by theFourteenth Amendment. He denies any wrongdoing.Background

Vito Lopez, who is 71, has been the elected representative ofthe people of the 53dAssembly District in Brooklyn since 1984. In his 28 years in the Assembly, he has spearheadedsignificant legislation, particularly in the areas of services to the aging and affordable housing


2/71

A social worker by training as well as by inclination, he has spent his entire career in the struggleto assure that a fair measure of the resources ofNew York State be allocated to those most inneed. He has been returned to the Assembly 13 times.

The Substantial Invest. Notice asserts that JCOPE seeks to determine, as a matter of factand law, whether a substantial basis exists to conclude that Mr. Lopez violated 74(3)(d), (f)and (h) of the Public Officers Law. The first two of those sections generally prohibit a publicofficial from using his official position, or suggesting that he would use his official position, toobtain benefits to which he is not entitled. The third of those sections prohibits a public officialfrom violating his trust. The Notice lists the following more specific ways in which Mr. Lopez isbeing investigated for violation of the Public Officers Law:

Whether, per Public Officers Law 74(3)(d), in violation of the obligation not to use or

attempt to use one's official position to secure unwarranted privileges and exemptions, hemisappropriated property or services or other resources of the state by

o compelling or attempting to compel others to comply with inappropriate demandsor requests;

o requiring legislative employees to travel for no legitimate governmental purpose;and

o improperly influencing the manner and process by which allegations of sexualharassment and other inappropriate conduct were handled, investigated andresolved.

Whether, per Public Officers Law 74(3)(h), in violation of his trust, heo subjected female employees to inappropriate actions, offensive comments andunwelcome physical contact of a sexual nature; ando received unwarranted privileges and exemptions by the manner in whichallegations of sexual harassment and other inappropriate conduct were handled,

investigated and resolved .

-2-


3/71

No violation ofPublic Officers Law 74(3)(f) is specified though the section isreferenced in the NoticeUnfortunately, the Notice makes no factual assertions and therefore provides no information asto what acts he is alleged to have committed that might constitute a violation of any cited section.Because of a fundamental unfairness in this process, it is left to him to suggesting ways in whichconduct that he has been alleged by others to have engaged in might violate the provisions. Forthat reason, he shall use as his basis for responding the two letters of complaint referencedbelow. Copies of these letters have previously been produced to you in response to a subpoena. 1The Initial Claims- by

In or around January 12, 2012, Mr. Lopez received a letter from Mariann Wang, Esq.,who purported to represent two Lopez staff members,came onto the staff in March 2011 but only began to interact directly with Mr. Lopez when shebecame co-chiefof staff in October 2011. was a difficult employee who never gotthe hang of the job. In December 2011, she was asked by Mr. Lopez to decide whether shewould make a full time commitment to the full time job and apply herself to the tasks assigned orleave. After several days of claiming to be il l she stopped showing up for work in December2011, followed by a letter of resignation.

an attorney employed as a legislative assistant, while an able employee, hadexpressed considerable disappointment in her situation, which she considered to be beneath her,and was known to be looking for another job. She did not work with Mr. Lopez directly.

came onto staff in late October 2011 and stopped working in January 2012 .

1 By subpoena dated September 21, 2012, replaced by a subpoena dated September 24, 2012, JCOPErequested documents from Mr. Lopez. Documents bearing production numbers VL JCOPE l through VLJCOPE 415 were produced timely on October 4, 2012.

-3-


4/71

The Wang letter asserted that the women were of the view that Mr. Lopez created andmaintained a "hostile work environment" that objectified women employees and subjected themto comments about their appearance and personal conduct and lives. In addition, both contendedthat they and other staff were required to attend what the letter referred to as "social functions" .

The attorney went further with respect to The principal claim ofwas that while she "undertook every effort to keep the relationship professional, Lopezrepeatedly attempted to tum it into a sexual one". Wang letter at 3 (VL JCOPE 3). Yet, as isreadily apparent, it was who persisted in making the most extraordinarilyinappropriate statements to Mr. Lopez. All but daily, she sent sexualized messages whichshowed that it was she who failed to maintain a professional mien. These includetelling Mr. Lopez, "I had a really good time with you tonight"; "I really enjoy hearing you laughand smile"; "I miss you and I can't wait until next Sunday"; "I can't wait until this week is overso I can see you"; and "I really love waking up and going to work just to be able to see you". 2

The investigation immediately undertaken by Mr. Lopez's counselled to the conclusionsboth that the Wang letter's description of the office as well as Ms. role therein werematerially at odds with the testimony numerous witnesses would offer.

The Wang letter conveyed, in unmistakable terms, that if Mr. Lopez (and the Assembly)were prepared to engage in "confidential private mediation" leading to a monetary settlement,the matter would be kept entirely confidential and no lawsuit would be filed. The value of theoffer was underscored by the fact that Gloria Allred, an attorney well known to use the press tobludgeon public figures into doing her bidding (i.e., paying her money), was listed as co-counsel.

2 These text messages are all cited in the hard copy of the PowerPoint presentation made to the mediatorand produced as VL JCOPE 6-32. While the hard copy of the presentation does not reflect the fullanimated sequence of slides, it contains the substance. It is annexed at Tab 1.

-4-


5/71

Indeed, the letter itself made clear its intentions: it was marked by its sender with the legend"Privileged and Confidential, For Settlement Purposes Only" .

The message was not lost on Mr. Lopez. In an e-mail to Ms. Wang from Mr. Lopez'scounsel, Mr. Lopez's counsel acknowledged that he understood what was in the offing- inexchange for a sum ofmoney, Mr. Lopez would not have to bear the distraction and costs ofdefending himself against legal claims or the press:

The little work I have been able to do certainly leads me to believe thatany dollar value this matter may have to your clients (and you) is basedsolely on whether we wish to avoid being pilloried in the press and notbecause the claims are true. I think it would be stating the obvious that ifyou conclude that your clients simply cannot hold back and need to maketheir assertions public, the complaint will have zero value to them or toyou. They only have settlement value .

E-mail from Gerald B. Lefcourt to Mariann Wang, 1129/12 (VL JCOPE 42).Participation in the "confidential mediation" would allow Mr. Lopez to determine just

how much, or little, it would cost to avoid not only a press storm, but the monetary, physical andtime expenditures of litigation, baseless though it would be.The Mediation Process and Settlement

On April 9, 2012, all parties appeared before a JAMS mediator. Each of the Assemblyand Mr. Lopez, through counsel, made a presentation to the. mediator. The presentation by theAssembly, no doubt provided to JCOPE in greater detail, traced the Assembly's complaintprocedure, and more specifically that the women both declined repeatedly to invoke the

procedure, as well as the fact that Mr. Lopez had no history of complaints lodged against himMr. Lopez's presentation (Tab 1), focused on the ways in which the facts exposed the lack ofsubstance to the claims. In particular, own words were cited to counter, in everymaterial respect, the claims she was asserting

-5 -


6/71

Though the two women initially sought a payment in excess of $1 million, they took whatwas offered: a letter of reference for each and just enough money to get their lawyers to go away- $103,080 from the Assembly and $32,000 from Mr. Lopez. To avoid the cost and distractionof litigation, it was a bargain.3

The settlement agreement itself provided for the two things of value that the women andtheir attorneys had to sell - that the spurious claims would not be fed to the press and that nolegal fees would be incurred defending against a spurious suit. That is what Mr. Lopez bought.

Because had never actually articulated any comment made to her other thana request that she not bring her boyfriend to work, Mr. Lopez was particularly loathe to give herany money. He was persuaded, however, for the same reason he was persuaded to pay Ms .

the relatively small sum of $32,000 avoided defense costs were a civil complaint to befiled. Moreover, he assumed that the sum was largely going to counsel, not to the two women,and for that reason had to be sufficient to satisfy the attorneys.The Complaint

Though the fact of, and the terms of, the settlement were to be keptconfidential, "rumors" began immediately to circulate that was paid $I million. Notsurprisingly, shortly thereafter, Mr. Lopez was notified by letter dated July 26, 2012, from KevinMintzer, Esq., that two other Lopez staff members, and wereinvoking the Assembly's complaint procedures (unlike or . Echoing theclaims made in the Wang letter, the Mintzer letter set forth a number of general claims that MrLopez made inappropriate personal remarks to staff members. It also alleged, with respect to

3 Without belaboring the point, Mr. Lopez has profound health problems (see infra n. 9). Avoiding theemotional strain ofboth a press feeding frenzy on a juicy story and litigation itsel fwas certainly on hismind in considering whether to fight or settle.

-6-


7/71

, certain specific claims relating to a trip to Atlantic City which was alleged to havehad no business purpose. The full defense to the claims is set forth in Mr. Lopez 's submission tothe Assembly Standing Committee on Ethics and Guidance and is incorporated herein. See VLJCOPE 115-133 (annexed at Tab 2) .The Assembly Standing Committee on Ethics and Guidanceffhe Public Censure

As a result of the complaint filed by Misses , and pursuant toestablished Assembly procedure, the matter was referred to the Assembly Standing Committeeon Ethics and Guidance, co-chaired by Assembly Member Daniel O'Donnell (who is also the co

chair of the Legislative Ethics Commission). Though the Assembly Standing Committee had nopublished adjudicative process, it used an inquisitorial model in which Mr. Lopez was invited tomake a blind submission to the Committee where, as here, he would not be allowed to see anyevidence, call his own witnesses or question any witnesses.

As noted above, by cover letter dated August 15,2012, Mr. Lopez made a submissionthat rebutted the allegations in the Mintzer letter. Tab 2. In a procedure that we understandbroke the land speed record of the Assembly Committee, injust nine days, including Saturdaysand Sundays, and at a time the Assembly was not in session and the members presumablyscattered, the Assembly Standing Committee conducted an investigation, resolved all factualquestions, reached its conclusions and produced a report. On August 24, 2012, the StandingCommittee sent a report to the Speaker in which it rejected Mr. Lopez's factual response to each

of the claimsMr. Lopez was not given a copy of the report or any opportunity to comment on the

report (or to have participated in the process that led to the report). Nevertheless, on that sameday, the Speaker credited the secret report, prepared after a secret process, and imposed sentence:

-7-


8/71

Mr. Lopez was publicly censured; stripped of the chairmanship of the Assembly Committee onHousing; stripped of the annual stipend associated therewith; prohibited from replacing staffuntil it reduced through attrition to that of a freshman member; stripped of seniority, whichdeprives him of the benefits ofhaving been returned to office repeatedly, from the location of hisoffice to his parking space; and banned from employing interns under the age of 21 - though atno time was he accused of any inappropriate conduct towards anyone even near that age.Because of the censure, Mr. Lopez was also compelled to step down as the Kings CountyDemocratic leader, a position he had held since 2006. The penalties imposed were the harshest

possible penalties short of expulsion available to the Speaker and extraordinarily out ofproportion to the treatment of other legislative members who were demonstrated to have engagedin far more serious conduct than any of the conduct alleged against Mr. Lopez.4

Following announcement of the censure, both the fact of and details concerning thesettlement were leaked to the press by the Assembly, with details filled in,

obligingly, if inaccurately, by Ms. Allred, who falsely claimed that she had never advocated

4 By way of contrast, in 1992, a staff member ofAssembly Member Mark Alan Siegel claimed she was beingpressured by Siegel into a sexual relationship. The matter was settled by a confidential payment approved by theSpeaker, but no action was taken against the MemberIn approximately 1995, Assembly Member Peter J. Abbate, Jr. (for whom currently works), wasrumored to have fathered the child of a young staffmember. There is no record of any action being taken againsthim.

In 2004, Assembly Member Adam Clayton Powell IV was accused of raping a 19-year-old female intern (theMember said it was consensual). No action was taken against him, though the Speaker was reported to be "deeplytroubled" by it.In 2007, Assembly Member Michael Cole admitted to having sex with a 21 year old intern. He was censured butnot removed.In 2008, Assembly Member Sam Hoyt was accused of having an extra-marital affair starting in 2003 with a then 23year old intern working on his staff. The matter was referred to the Assembly Ethics Commission and the solesanction imposed on him was that he was barred from employing interns.

-8-


9/71

confidentiality. A firestorm ensued, in particular why it was that the Speaker determined tosettle the first complaint without public disclosure .The Current Proceeding

By letter dated August 30, 2012, JCOPE served on Mr. Lopez a so-called "15 day notice"pursuant to Executive Law 94(13)(a). At the same time, the Speaker instigated a criminalinvestigation of Mr. Lopez (and perhaps to his surprise, of himself). The District Attorney ofKings County recused himself and the District Attorney of Richmond County was appointed toconduct the investigation.

In response to the August 301h Notice, Mr. Lopez asked JCOPE not to put him in the

impossible position of having to choose between defending himself against the imposition ofcivil sanctions that could be imposed through the JCOPE process and defending himself againstthe imposition of criminal charges. See letter dated September 6, 2012, to Ellen N. Biben, EsqHe argued that a delay, pending resolution of the criminal investigation, was (and remains)particularly appropriate given that Mr. Lopez had already received punishment far in excess ofwhat has been imposed in the past for far worse conduct. That request was ignored

Thus, JCOPE continues to pursue an investigation that is not only duplicative of the oneconducted by the Assembly Standing Committee and as a result of which harsh sanctions wereimposed on him by the Speaker, 5 but one that forces him to choose between his Constitutionalrights under the Fifth Amendment and preservation of his elected position and the benefits

thereof. It also potentially deprives the residents of the 53d Assembly District unfairly of theirelected representative without due process.

5 Needless to say, in determining to censure Mr. Lopez and impose the full range of penalties, theSpeaker was well aware of the prior allegations and no doubt took those into account when deciding howbest to proceed with respect to the Assembly Ethics Committee report.

-9-


10/71

As noted, rather than agree to the entirely reasonable delay, JCOPE pushed forward and aNotice of Substantial Investigation was served. Unfortunately, Mr. Lopez's ability to participatein the determination ofthe facts and application of the statute has been limited to one writtensubmission. He has no right to call witnesses in his defense or to cross-examine witnesses. Hehas no right to be present when the witnesses are questioned. He has no right to see either atranscript of their testimony or, since JCOPE has decided to proceed largely by "informal officeinterview" and thereby avoid preservation of testimony, to see the notes of those interviews.

Oddly, the Notice purports to inform Mr. Lopez that sanctions may be imposed upon him

only after a "hearing" and only upon a finding that he knowingly and intentionally violatedPublic Officers Law 74. Yet neither the JCOPE rules, nor the rules of the Legislative EthicsCommission to which body JCOPE will submit its findings of fact and conclusions of law forimposition of sanctions, appears to allow for any "hearing". Instead, the findings by JCOPE -again, reached without allowing Mr. Lopez any opportunity to examine witnesses or to argue theevidence to the triers of fact - will be passed onto the Legislative Ethics Commission (co-chaired, no less, by the same co-chair as the Assembly Standing Committee, that already madeits findings), which will either accept them or reject them. There will be no adjudicative processat any stage in which Mr. Lopez may participate.6

It is a fundamental right under the Constitution of the United States and pursuant to the141h Amendment that the State not deprive a person of his rights without due process oflaw. The

Supreme Court's observation over fifty years ago in Greene v. McElroy, 360 U.S. 474, 496-497( 1959), is particularly pertinent here:

6 A third option available to the LEC is to ask JCOPE to conduct a further investigation, but that providesno additional due process and just leads back to the same unfair process.-10-


11/71

Certain principles have remained relatively immutable in ourjurisprudence. One of these is that where governmental actionseriously injures an individual, and the reasonableness ofthe actiondepends on fact findings, the evidence used to prove theGovernment's case must be disclosed to the individual so that hehas an opportunity to show that it is untrue. While this isimportant in the case of documentary evidence, it is even moreimportant where the evidence consists of the testimony ofindividuals whose memory might be faulty or who, in fact, mightbe perjurers or persons motivated by malice, vindictiveness,intolerance, prejudice, or jealousy. We have formalized theseprotections in the requirements of confrontation and crossexamination. They have ancient roots. They find expression in theSixth Amendment . . . . This Court has been zealous to protectthese rights from erosion. It has spoken out not only in criminalcases, . . . but also in all types of cases where administrative . . .actions were under scrutiny.

And as the Supreme Court noted in Goldberg v. Kelly, 397 U.S. 254,269 (1970): " . . . in almostevery setting where important decisions turn on questions of fact, due process requires anopportunity to confront and cross-examine adverse witnesses."

Certainly, New York has not been remiss is affording its citizens the full measure of dueprocess due in a wide variety of contexts. See, e.g., Felix v. NY. City Dep't ofCitywide Admin.Servs., 3 N.Y.3d 498, 504 (2004) (municipal employee must be afforded procedural due processbefore he or she is dismissed from employment for violating New York City's residencyrequirement); People ex rei. McGee v. Walters, 62 N.Y.2d 317,321-323 (1984) (right to confrontwitnesses in parole revocation hearing). These cases all stand for the bedrock proposition thatthe minimum requirement for a fair adjudicative process is that it include the right to

confront the evidence. The procedure that has been set up here to "try" Mr. Lopez entirely failsto afford him the minimum rights required for a lawful adjudication in this country. The notionthat the facts attendant to highly controversial (and controverted) claims will be resolved withoutany opportunity to confront and to cross-examine the witnesses is just wrong .

-11-


12/71

A fair procedure, rather than the inquisition this is, would afford Mr. Lopez (i) specificnotice ofwhat he is alleged to have done; (ii) discovery, including ofwitness statements; (iii) anopportunity to cross-examine the witnesses; and (iv) the chance to call witnesses on his ownbehalf. It is difficult to imagine that, when each of the commissioners agreed to serve on apublic body devoted to ethics, each understood that the procedures to be employed would be soflawed that the commissioners would be sitting in judgment without affording the accused any ofthese bedrock components of due process. We ask that each Commissioner consider whether heor she can ethically participate in a process that is so wholly devoid of the standards upon whichour system of ustice is based. The pretense that Mr. Lopez will be afforded a hearing by othersis just that, a rationalization to soothe whatever disquietude each Commissioner should feel atthe prospect of furthering such a process.Substantive Defense to the Potential Claims

Because Mr. Lopez has not been given any access to what the witnesses are saying orbeen given notice of what factual allegations are being investigated, an attempt is being madeherein to match the stated potential claims of violation of Public Officers Law 74 with theallegations made in the two letters of complaint referred to above. While, as noted above, it isperverse for Mr. Lopez to be in the position of suggesting what conduct, if credited, may havebeen a violation of which section of the Public Officers Law, the process imposed leaves him nochoice.

1. The Atlantic City TripThe most significant accusations are those made by in connection with a trip

to Atlantic City in July 2012. It appears that claims that the trip was unrelated tolegislative business. It is assumed that she is therefore contending that notwithstanding a lack of

-12-


13/71

legislative purpose, she nevertheless was required to accompany Mr. Lopez on the trip. If so,that would arguably support the claim that Mr. Lopez "compelled others to comply withinappropriate demands, as well as required employees to travel for no legitimate purpose"(Notice at 1 .

Two further claims are being made concerning this trip, and are the only claims by any ofthe women that Mr. Lopez ever touched anyone inappropriately. claims that whilein New Jersey, Mr. Lopez sought to kiss her and she repulsed him. Additionally, she claims thatMr. Lopez put his hand between her legs while on the drive back to New York. Each ofthesetouching claims is presumably being looked at as possible a "violation of his trust, in that hesubjected female employees to unwelcome physical contact of a sexual nature". !d .

The Assembly Standing Committee was told and it is reiterated here: the trip to AtlanticCity was for a legislative purpose. Mr. Lopez traveled to Atlantic City to meet with a constituentwho sought to raise legislative interest in a practice relating to insurance, a practice Mr. Lopezthought was potentially troublesome both to individual and to commercial purchasers ofinsurance

The constituent, who is a very successful insurance broker with significant commercialinsurance business, was concerned about insurers routinely providing notice of impending policycancellation accompanied by a notice of an increase in the cost of renewal and consistently doingso on Friday afternoons, leaving the consumer little choice but to re-up at whatever cost theinsurer named. The meeting did, in fact occur, as planned. Not only was there discussion of thisat the Atlantic City meeting, as intended, but there were numerous follow-ups after the trip. Infact, was instructed to follow-up, though she left her job without ever having doneso .

-13-


14/71

That is not to say that Mr. Lopez was not looking forward to a day out of the office.Indeed, in that he was not alone. Though was the staff person who would have beenmore likely have attended the meeting in Atlantic City because the constituent was in herassigned area, went out of her way to assure that it was she who was permitted tostaff the meeting.7

The plan was to meet the constituent in Atlantic City for dinner, discuss the matter withthe goal of establishing a working relationship, and leave that evening. excitementin anticipation of the trip could not be contained:

Good morning Vito! I'm looking forward to today! I have the luckycoin ready to go!

7110/2012 9:18:43 AM

Mr. Lopez and left Brooklyn at about 1 p.m. and arrived in Atlantic Cityshortly after 4 p.m. Upon arrival, plans were finalized as to where to meet the constituent fordinner. While waiting to meet for dinner, disclosed that she was an experiencedgambler, a claim that was confirmed when over the course of approximately two hours she wonwhat appeared to be at least $1,000 playing blackjack and craps.

In setting a firm time for dinner, Mr. Lopez learned that his constituent had arranged forhim to have access to a hospitality room which he could use to freshen up. He andvisited the room for the sole purpose of using the bathroom. Mr. Lopez denies that he arranged aroom, denies he was "camped", and denies absolutely that he in any way made any improper,aggressive or sexual approach to in the ten to fifteen minutes they were in the room,or at any other time. While Mr. Lopez denies that there is any substance to the claim that he tried

7 In fact, was so miffed that she missed out on the opportunity to travel to Atlantic City withMr. Lopez that she thereafter pressed for a second trip on which she could accompany Mr. Lopez.-14-


15/71

(unsuccessfully) to kiss and or put his hand on her thigh while driving,8 as JCOPEis fully aware, these claims are being investigated by the District Attorney of Staten Island onbehalf of the District Attorney ofKings County. Given the pendency of a criminal investigation,it is highly inappropriate for JCOPE to involve itself in a parallel investigation of the sameconduct.9

After freshening up, the two proceeded to the place they were to meet their dinnercompanion. He was late and the two ordered dinner without him. When he did arrive, the threewent to the casino, where inexplicably wandered off and Mr. Lopez had theplanned discussion. Sometime before 11 p.m., Mr. Lopez and started back toBrooklyn, as planned. Mr. Lopez was not only not drunk, as alleged, but he had had no alcoholat all. He rarely drinks.

The morning after this entirely uneventful day, sent Mr. Lopez thefollowing text:

Good morning Vito! I was just thinking what a nice night wehad being high rollers! I hope you found a little respite last nightand also got home safely! See you in the office, we have the 2pmREBNY meeting to go over!

71111201210:16:48 AM (emphasis added). Put starkly, JCOPE isto determine whether someone who, after learning (falsely) that another employee had been paid$1 million, claims that she was subjected to unwanted touching (or any other unwanted conduct)

8 It is unclear whether claims that Mr. Lopez did this once, on the drive back to New York,or on that occasion and other occasions. In any event, she never mentioned any such actionscontemporaneously and Mr. Lopez denies that he ever touched her in this manner.9 We do note that it is no secret that in 1993, Mr. Lopez was diagnosed with leukemia. Though he wassuccessfully treated, the cancer returned in 2010. In the past two years, he has undergone both chemo andradiation therapy which treatments have often left him debilitated and unable to work, and exhausted evenwhen able to work. He has at the same time suffered repeatedly from related illnesses, ranging frompneumonia to gum disease. The notion that this 71 year old ailing man could alarm a 26 year old with hisability to overpower her is not believable. Anyone who has seen Mr. Lopez knows he looks frail.

-15-


16/71

would send that e-mail hours after the incident, or whether that e-mail, and the many that follow,reflect that the claims are made-up. Perhaps it is not necessary to say that it is not possible toreconcile a claim that Mr. Lopez made unwanted advances with the fact that sentmessages that entirely belie that anything untoward occurred.

One day later, she sent the following:We had our staff meeting and I just wanted you to know that I'mhere to support you and I'll have your back. I'm excited and lovethis job, I'm going to show you that.

7/12/201211:19:24 AMAnd there were other texts thereafter:

. . . I'm excited and love this job) 7112/2012 11:19:24 AM

. . . I love this job7/14/20121:19:09 AM

As suggested above, it may be that this trip is being looked at for several possibleviolations. First, if the trip were unrelated to work, as contends, andwere paid by the Assembly for the time she was traveling to and while she was in Atlantic City,those facts might support a claim that Mr. Lopez "misappropriated to himself the services of thestate", specifically, ' Assembly-compensated time. That will not fly .

We understand that never submitted on a timely basis any time sheet for thisperiod. Instead, within the last two weeks of the date of this submission, the Assembly's HumanResources Department sought to have someone on Mr. Lopez's staff, a person with noknowledge of the facts, sign ' time sheet for that day. Though he refused to do so,

-16-


17/71

we further understand that the time sheet claims she worked only until noon that day, an hourbefore she and Mr. Lopez left for Atlantic City .

Little need be said about what appears to be a desperate after-the-fact effort to generateevidence to support the claims. What is quizzical is that, if indeed was not paid forher time, then it cannot be that Mr. Lopez "misappropriated" her time from the Assembly

Alternatively, if it were so that was asked to accompany Mr. Lopez on anon-work trip "after" hours (i.e., not on Assembly time), there is certainly no evidence she didnot go willingly. Her text messages quoted above show no signs whatever of the slightestreluctance to join him on the trip, whether for business or for pleasure.

Thus, either way- the trip was part of the job or it was not part of the job -no aspect of itviolates the Public Officers Law.

Nor would evidence of unwanted physical contact be credible. It is assumed that the onlyevidence of such is Ms. current words. But were Mr. Lopez able to cross-examine thewitness in order to expose the truth, it would soon become clear that her present claims cannothold up to her contemporaneous account of how much she enjoyed the trip.

A Note About the Text MessagesIt is anticipated that evidence of the contemporaneous text messages of, in particular,

and , are being "explained" by a claim that Mr. Lopez insisted that they writesuch messages. That is not sustainable.

It may be that the investigation has uncovered the unremarkable fact that Mr. Lopezencourages his staff to communicate with him what they accomplished that day, and to do so inpositive terms. But, other than pursuant to an effort to avoid the inescapable conclusion that thetexts of (and of ) gut their claims, there is no evidence that Mr. Lopez

-17-


18/71

forced these women to write sexually explicit and highly inappropriate messages to him. Indeed,as notes in a July 5, 2012, text to Mr. Lopez:

I know you said you didn't like texts but I just thought I'dcheck in and say goodnight.Any trier of fact (as you are) must realize that it is not consistent with what we know of humannature that a person, even an employee, who is supposedly assaulted thanks her assaulter for agreat evening, dwelling on the fun had- as did. Nor is it consistent with normalhuman experience that can possibly not have known that her messages wereinconsistent with her claim she that she tried to keep the relationships professional, including: "Iplay to win" or "I wish I could have been there" or "I had a really good time with you tonight-As much as you like seeing me smile I like seeing your more . . . even if it means being crazyevery once in a while" or "I really enjoy hearing you laugh and smile" or "I miss you and I can'twait until next Sunday" or "I can't wait until this week is over so I can see you" or "I really lovewaking up and going to work just to be able to see you".

2. Other "Unreasonable Demands"The Atlantic City trip is of a piece of the claim that ". . .once hired, all of the women, and

none of the men, are repeatedly instructed by Lopez that they must attend social functions".Wang letter at 2. This is incorrect in every material way.

First of all, if by "social function" the complaint means fun event with no businesspurpose, then and are confirming that they really did not understandtheir jobs. These are not "social functions" -they are work. Like many other legislators, Mr.Lopez uses these occasions to further his legislative agenda- by connecting with people he hasbeen trying to see, by giving access to others who have been looking for an opportunity to chat,by being in a position to talk about work. His staff, male and female, are expected to attend,

-18-


19/71

with specific instructions to follow him, to hand out and to collect cards, to note with whom hehas made arrangements for calls and meetings, whom he wants to be sure to call, and who wantswhat, when and why.

Indeed, it is for this reason that he admonished when she brought herboyfriend to an event- she just did not get why she was there. She was not getting paid to enjoyherself.

Moreover, it is difficult to understand how, for example, can be complainingabout "having" to attend "social events" when her messages over and over again are nothingshort of exuberant about being included: "Vito, . . .you taking me to (Gracie] mansion was verysignificant but mostly because I got to go with you"; "Vito [,] I had a really good time with youtonight;" and "It sounds like you had a good time, I wish I could have been there". Where is theevidence that anyone made her be excited about attending these events? And if there was a "gunto her head", why is not also [falsely] jumping for joy? In short, these so-calledsocial events are work. Mr. Lopez required his staff- male and female- to attend these events.Job applicants were told this was part of the job and it is. While it may be that Mr. Lopezexpects more work from his staff than do other Assembly members, that is not what is beinginvestigated. Certainly, until he was stripped of his authority, he got a lot ofhis legislativeagenda done.

The remaining claims in this regard are that he is alleged to have demanded that his staffdress in certain ways. Interestingly, there is no evidence whatever that anyone ever actually tookseriously the remarks he is allege to have made. Not one of the complainants contends that sheactually wore low cut blouses, short skirts and high heels in order to comply with these allegedunreasonable demands, or, for that matter, anyone came to work naked, as one claimant contends

-19-


20/71

he suggested. Thus, while he denies that he made any such suggestions, let alone demands, nonecarries a claim that he made any employment decisions based on compliance with these allegeddemands or that anyone ever took them seriously enough to comply with even one of them.

3. The Exacting ofUnwarranted PrivilegesOther claims also fall into the category of allegedly "exacting unwarranted privileges"

We see no claims by or that Mr. Lopez either offered to extend anybenefits or threatened to withdraw any benefits. However, the Wang letter makes that claimrepeatedly. Thus, among the claims that might come under this category are the claim by Ms.

that her job appeared to depend on whether she agreed to comply with Mr. Lopez'ssuggestions of a personal relationship, and by that she was threatened with firingbecause, she alleges, Mr. Lopez learned that she had backed up complaint. (As tothe latter, the Assembly has denied that it ever informed Mr. Lopez that had spokento Assembly counsel. Therefore, there is no factual basis for her assertion.)

As to , as exhaustively set out in the presentation made to the mediator, Ms.was a terrible employee. was initially hired as a legislative assistant to focus

on the needs of loft tenants and Mr. Lopez found her work to be acceptable. In the fall of2011,however, she was asked to become co-chief of staff in the Brooklyn office. She agreed to do sobut asked nevertheless to work part-time in order to study for the LSATs. Mr. Lopez agreed tolimp along while she did that. To encourage her, when her position changed to co-chief of staff,he approved pay raises (for both co-chiefs). However, by her own admission, leftthe exam without completing it. She returned to work unable to get anything done and thenwanted additional time to study anew. By that time, Mr. Lopez had "had it" with her and told

-20-


21/71

her that she needed to decide whether she was Chiefof Staff or not: her failure to engage the jobwas unacceptable .

Because he denies that he sought to have a personal relationship with her, he denies thatany employment decisions concerning her were based on any willingness on her part to havesuch a relationship. Indeed, it is difficult to read texts without it crossing one'smind that it was who, aware of the limitations of her skills as an employee, sought toentangle Mr. Lopez so that he could not let her go or he would have to pay for the privilege ofdoing so.

4. The Settlement of he ComplaintThe final way in which JCOPE might consider Mr. Lopez to have violated his

obligation not to use or attempt to use one's official position to secure unwarranted privilegesand exemptions, or that he misappropriated property or services or other resources of the state, iswhether he improperly influenced the manner and process by which allegations of sexualharassment and other inappropriate conduct were handled, investigated and resolved - as setforth in the Notice.

By now, JCOPE must surely know this is false. At no time did Mr. Lopez seek toinfluence the manner in which any of the claims were handled, investigated or resolved. Weassume this refers to the first set of claims, made by and Not only did Mr.Lopez not seek to "pressure" the State to come up with funds to settle the matter, but theAssembly had to urge Mr. Lopez to come to the table. Certainly, at all times, the Statedetermined for its own reasons to resolve the claims. And, while he was not privy to the

-21-


22/71

Assembly's thinking as to all of the reasons why the claims should be resolved, 10 we submit itwas entirely reasonable to do so .

Here, not only did the women not make formal complaints, but they declined to do so.Instead, it was they who insisted on handling the matter confidentially. And they did so in orderto assure that their baseless complaints retained value. Had the complaints been exposed to thelight of day, under any fair adjudicative process, i.e., where the complainants could bequestioned, the claims would have been exposed for what they were - a demand that they begiven money or they would expose Mr. Lopez and the Assembly to a costly litigation processwhile the tabloid press had its usual distracting field day(s). For Mr. Lopez, the choice wasclear: he could face expensive litigation even if he were vindicated in the end, or he could get ridof the matter for nuisance value. The choice was not difficult for him.Investigation that JCOPE Ought to be Doing

There are a number of questions that Mr. Lopez believes JCOPE ought to beinvestigating that would certainly shed light on what occurred here. For instance, therelationship between the attorneys for the first set of complainants and the attorney for thesecond set. Second, all of the complainants appear to be tied into political opponents ofMr.Lopez, in particular, Lincoln Restler and the New Kings Democrats. When did those ties beginto form and what are those relationships. Third, Mr. Lopez endeavored to find out whether Ms

and intend to bring a civil action, presumably in their quest for their

1For example, it may well be that the Speaker sought to avoid press attention on the claimsand were making lest the press eventually come to focus on the actual goings on in Albany,in particular, those of the Speaker. It is no secret, except perhaps from the public, that stories of theSpeaker's serial and sometimes overlapping personal relationships with his own staff have long circulatedin Albany. Whether that was one of the motives for the Speaker deciding to settle the matter is not knownto Mr. Lopez.

-22-


23/71

$1 million. Though their attorney refused to say when asked, their intentions with respect to acivil matter are highly relevant to their credibility

Conclusion

For all of these reasons, JCOPE should (i) delay this proceeding until the criminalinvestigation has concluded; (ii) allow Mr. Lopez to confront the evidence against him beforeany findings of fact and conclusions of law are reached; and (iii) conclude that there is not asubstantial basis to believe that Mr. Lopez violated Public Officers Law 74 .October 23, 2012

Respectfully submitted,

B . \Gerald B. Le ouSheryl E. Reich

148 East 781h StreetNew York, N.Y. 10075(212) 73 7-0400(212) [email protected]

-23-


24/71

1


25/71


26/71

. I Lopez vs. Text Messages

October 26th to December 13 , 2011140

120

""u 100cafi t.,cu% 80~ cu....""" 60a..cu.cE:::J 40z

,{ [!1 texts to r 20-n0.,tT'l0000 0--.1 Vito

l


27/71


28/71


29/71


30/71


31/71

ll 00003d0;)f'li\


32/71

100003dO:Jf1/\


33/71


34/71


35/71


36/71


37/71


38/71


39/71


40/71


41/71


42/71


43/71


44/71


45/71


46/71

Z00003dO:Jf'lA

CJ) ~ ~(0 n 30 QJ:::J - .."< CJ)


47/71


48/71


49/71


50/71


51/71


52/71

2

----- -


53/71

GERALD B. L E ~ C O U R Tiefc011't41111fcourtlaw.oom

SHERYL E REICH~ c o u r t l a w . c o m

RENATO C. STABILESllbiiiOIIIcourllaw.comFAITH A. FRIEDMANf f r t e ~ c o m

LA W OFFICE$ OP'GERALD B. LEFCOURT, P.C.

A PROFESSIONAL CORPORATION148 EAST 78TH STREET

NE W YORJ[, NEW YORK 10075

August 15,2012

VIA E-MAIL TO ANN HOROWITZThe Honorable Daniel J. O'Donnell, ChainnanAssembly Standing Committee on Ethics and GuidanceLOB 819Albany, N.Y. 12248

In re Complaints of andDear Chairman O'Donnell:

TELEPHONE(212) 737 - 0400

FACSIMILE(212) 988-6192

I represent Assembly Member Vito Lopez, who was asked on July 27, 2012, to provide awritten or oral statement to the Committee on Ethics and Guidance in response to a complaintreceived from Kevin Mintzer, Esq., on behalf of two employees.

At my request, by letter dated August 3, 2012, Mr. Lopez's time to submit a response wasextended to August 16,2012. On August 9, 2012, we notified you that Mr. Lopez's responsewould be written.Herewith is a written submission which we ask you to considerThank you for your cooperation. If you have any questions, please do not hesitate tocontact me.

VLJCOPEOOO 115


54/71

SUBMISSION OF ASSEMBLY MEMBER VITO LOPEZ TO THE NEW YORKSTATE ASSEMBLY COMMITTEE ON ETHICS AND GUIDANCEIN RESPONSE TO COMPLAINT SET FORTH IN LETTER DATED JULY 26,2012, FROM KEVIN MINTZER, ESQ., TO CAROLYN KEARNS, ESQ.IntroductionVito Lopez has served as an elected member of the New York State Assembly fromKings County for 28 years. Mr. Lopez has always maintained a very active office inadvocating around social issues, in particular on behalf of the less fortunate. When firstrunning for office, Mr. Lopez made a commitment to help others, without regard to hisown personal interests, and he has stuck by that commitment. He has not taken avacation in many years, though his ability to discharge his responsibilities has beenlimited by his ongoing struggle with cancer and sympathetic illnesses that are common tothose with weakened immune systems.

and joined Mr. Lopez's staff in mid April 2012. Duringtheir brief tenure (from April18, 2012, through July 15,2012, approximately twelveweeks) Mr. Lopez provided whatever support or guidance he could. It was a difficulttime for him, during which he was hospitalized with pneumonia for seven days and hesuffered the death of his close friend, Judge Gus Reichbach. That same three monthperiod saw significant legislative work, including on his housing agenda, and twoimportant Congressional races in North Brooklyn. 1 Both andenjoyed the support of the rest of Mr. Lopez's staff in both Albany and in the BrooklynDistrict Office. Frankly. until the day they stopped working he was unaware that eitherhad any complaint about the conditions of employment. That is particularly true, as shallbe further explored below, because each of them to the very end of her respective tenureregularly reported, both to him and to others, that, as put it in one of manysimilar text messages,. . . I was just talking about my job and I thought i'd textyou to say how lucky and excited I am to work for you andhow dedicated I am to you and the work.

713/2012 3:53:47 PM.And, from

. . . I'm very happy with my job

1 During the twelve week period of their employment Mr. Lopez had no or limited interactionswith these staff members, as reflected on the attached calendar indicating such .

VLJCOPE000116


55/71

) 6/3i2012 6:17:18 AM. continueJl) 613/2012 6:17:28 AMIn fact, their desks, files, phones, and chairs remained untouched for weeks, with anexpectation on the part of other staff that and would return to thejobs they professed to love.The working environment Mr. Lopez established in his offices was always intended to bepositive and supportive, with the goal of creating a successful team both to meet the dayto day needs of constituents and to press forward Mr. Lopez's legislative agenda. Thework given to and seemed to be suited to the skills eachexhibited; the areas of interest each expressed; and the willingness each had to stretch outof her safety zone to take on new challenges. Each said she was willing to devote thehours necessary to get the job done.That being said, both and each experienced some difficultieswith meeting the goals and objectives of her work responsibilities. Whether those were afunction of a continuing adjustment period, or deeper shortcomings, is unknown.Certainly, until Mr. Mintzer's letter, neither nor evercomplained about any aspect of her work. In fact the opposite is true:

We had our staff meeting and I just wanted you to knowthat I'm here to support you and I'll have your back. I'mexcited and love this job, I'm going to show you that.71]2l20121 1:19:24 AM

Mr. Lopez is deeply saddened by their complaint and its impact on the people with whomthey have worked. Because they simply walked offthejob, constituents were literallyleft on a street comer waiting to be picked up by a bus that never came; supporters andwork partners left messages but were never called back; and important business was leftunfinished. Not only is that irresponsible on a professional and an interpersonal level, butother staff had to bear the brunt of this.As he approaches thirty years in the New York State Assembly and fifty years in publicservice, Mr. Lopez takes well deserved pride in his legacy and, therefore, the actions ofthese staff members has even more significance.So it is clear. Mr. Lopez absolutely and entirely rejects any claim that he ever engaged inany inappropriate (or any) touching of or . Nor has he ever saidanything or done anything that was intended to be inappropriately familiar. Nor has heever said or done anything that was intended to make either of them uncomfortable2 text messages tend to be broken into multiple messages, evidently because shewould press "send" before ending the message. For clarity, where it is evident that that occurred(usually because a single word is broken into two messages), the broken messages are presentedas one message .

-2-

VLJCOPEOOO 117


56/71

That having been said, both the Albany office and the Brooklyn District Office are smalloffices populated by staff members who see each other for many hours a day, day in andday out. Mr. Lopez acknowledges that, as is typical of small offices, the hierarchicallines can become blurred, with topics discussed and intimacies shared that are best leftout of the workplace. If he is at fault for any hurt feelings or misunderstandings, it isthrough a failure on his part to insist on a more fonnal atmosphere than what he hasallowed in the past. So too, it would appear that the generational gap between Mr. Lopezand these employees may have led him to believe that what to him was innocent might beseen as suggestive and even inappropriate. In that, he certainly has learned his lesson.With that, below we address the specific claims as to each of the two complainants after ashort focus on each employee. To avoid confusion, we have taken the liberty ofassigning numbers to the "bullet points" in each of the sections "A" and "B" (e.g., A.2,etc.). Duplicative or similar claims are grouped.

was hired after she applied for a position in response to a job openingposting. She began working in mid April2012 and worked out of the Albany office untilthe first week of June 2012, approximately seven weeks ofher 12 week employment.During this first, Albany, period-- approximately 14 days of legislative session-- Mr.Lopez missed six session days when he was hospitalized with pneumonia (May 12-21).The hospital stay and resulting fatigue curtailed his work schedule and perfonnance forthe subsequent six weeks .By early June, had transferred to the Brooklyn District Office. However,she accompanied Mr. Lopez to Albany for the eleven session days held in early June.Because of his physical condition, Mr. Lopez was in his hotel room, alone, by 9:30p.m.every evening he was in AlbanyWhile showed potential for promotion, based on performance of job tasksundertaken in the Albany office, she approached the Brooklyn community differently andoften alienated leaders in both the Asian community and the loft tenant community--twovery important constituencies in the 53rd Assembly District. In fact, while her work wasable, she had an imperious attitude that caused significant constituent friction. This was amatter of great concern to Mr. Lopez and he spoke to about it directly.recently received a $2,000 raise based on her willingness to relocate to Brooklynand to travel back and forth from the District Office to the Albany office. Nevertheless,she left many tasks unfinished in the District Office, further alienating importantconstituencies.

did not, by the way, work for "more than two years" in Albany for DC 37,as is claimed in the complaint.

-3-

VLJCOPEOOO 118


57/71

A. I"Invitation to Travel to Russia"There was a gathering at the Bushwick United Democratic Club on the date alleged andboth and Mr. Lopez were present, as were between 15 and 25 others, all ofwhom were there in connection with the impending June 26,2012, Congressional race.That day was a trying one. Not only was there an important upcoming election, but Mr .Lopez had that day suffered a disappointing rejection ofa housing bill on which and staffhad expended a great deal of effort. Compounding matters was Mr. Lopez'sdisappointment at the manner in which had communicated the legislativeset-back to the loft tenant constituents. Instead of empathizing, she lectured them. Theyin turn were upset by her behavior, and they let Mr. Lopez know it. Mr. Lopez toldshe had handled the matter poorly and instructed her on how she might improveUnfortunately, is always quite certain that she is right and does not takecriticism well.At no time at the Democratic Club was Mr. Lopez alone with . In fact, giventhe number of people in attendance (many) and the size of the room (small), no twopeople could have a private conversation even if they had wanted to do so. And Mr.Lopez neither wanted to nor did he have a private conversation withFurther, he did not invite her to accompany him on a trip to Russia nor, even if he haddone so, would he have conditioned her joining him on any particular sleepingarrangementsFirst of all, Mr. Lopez does not travel. In the last several years, he has flown twice, bothtimes in connection with his official duties and both times locally: to Puerto Rico and tothe Dominican Republic. No official responsibilities would take him to Russia and hedoes not take vacations.There is a recollection that on that occasion, or perhaps another, saying thatshe had an interest in traveling to Russia, but it was not in response to an invitation fromMr. Lopez. Thus, the claim that he "stormed" out of the Club because of her rejection ofhim is denied. At one point, he did leave the Club .. to reach out to Italian communityleaders to gather support in connection with the Congressional race .A.2., A.8, A.9, A.12Clothing and AppearanceMr. Lopez denies raising with the subject of her undergannents, or for thatmatter, her outergannents, either. At no time did he ever "snap her bra" or touch her inany way. He does not recall one way or the other if he ever told her she "looked nice" .He never told her to dress in any particular way and he never told her how to wear herhair

VLJCOPE000119


58/71

For her own reasons, on one occasion and with no predicate, volunteeredthat she had recently cut her hair; that she regretted having done so; and that she intendedto grow her hair long like that of . Mr. Lopez expressed no view on thesubject.A.3Discussion ofPenonal Relationship with her Former EmployerThe complaint asserts that Mr. Lopez repeatedly questioned Ms. about whethershe had had a personal relationship with her prior employer and that the subject made her"uncomfortable". The reality is that inexplicably offered that she had had apersonal relationship with a prior employer, a lobbyist; that the lobbyist's wife had beenincensed about it; and the lobbyist's wife had contacted directly to get her todesist. also volunteered that the employer arranged dates for her with otherlobbyists and even with Assembly members.Though puzzled as to why would share such information, Mr. Lopez didexpress concern as to what impact the prior relationship might have on his own workingrelationship with the lobbyist, with whom he occasionally worked on various issues. Mr.Lopez did not initiate the topic with for a number of reasons, first andforemost because he had no knowledge that there was any relationship between the twountil volunteered the information.It is difficult to understand how, having volunteered the information when it was neitherappropriate nor called for, Ms. now seeks to assign wrongdoing to the recipientofthe unwanted information.Moreover, it is quite clear that Mr. Lopez in no way invited intimacy ofany kind with, as she herself admits in the following text:

I know you said you didn't like texts but I just thought I'dcheck in and say goodnight. I know our relationship is awork in progress but I hope you know and I hope to proveto you how caught up I am in your work and that I amlooking so forward to everything we are going to dotogether715/201211:08:13 PM

A.4; A.S; A.llForced Touching; the Hand MassageMr. Lopez never touched , never put his hand between her legs and nevermade contact with her inner thigh; he never insisted on a kiss. Mr. Lopez rarely drinksand would not drive drunk. Indeed, if ever was truly concerned about being

VLJCOPEOOO 120


59/71

in a car alone with Mr. Lopez, one wonders how to reconcile that with, for example, thefollowing text:Hope you had a nice, relaxing day! We're all set for thepress conference. I am planning on being there by 9:45.Then I am looking forward to the ride up to Albany!

6/1712012 9:21:27 PM(emphasisadded)did on one occasion massage Mr. Lopez's hand, but not in a sexual or otherinappropriate manner. It occurred when she observed him massaging his own hand whiledriving. She asked what the problem was and he explained that he had suffered nervedamage in it and as a result it would "go numb"; he then relayed that he found thatmassaging it revived circulation. offered to massage the hand and did so .Mr. Lopez neither solicited it nor thought it was wrongful. He never required her tomassage his neck. If she nevertheless in fact did so, he has no recollection of it.

A.6, A.7The Atlantic CitvTrioThe complaint alleges that Mr. Lopez insisted that join him on a trip toAtlantic City, that the trip had no work purpose but was for pleasure, and that despite herinsistence that she would not sleep over, he obtained a room for the two of them.This is materially inaccurate .The trip to Atlantic City was solely for work, undertaken for the purpose of meeting witha prominent civic leader and business man. The plan was to meet him there for dinner,discuss several business and civic issues with the goal of establishing a workingrelationship, and leave that evening. Ms. accompanied Mr. Lopez because itwas work, although she seemed rather happy to be going, as can be seen from this textmessage sent the morning of he trip:

Good morning Vito! I'm looking forward to today! I havethe lucky coin ready to go!7l/0/2012 9:18:43 AM

Mr. Lopez and left Brooklyn at about 1 p.m. and arrived in Atlantic Cityshortly after 4 p.m. Upon arrival, Mr. Lopez endeavored to locate the person with whomthey were to meet and a plan to meet for dinner was made .While waiting to meet for dinner, disclosed that she was an experiencedgambler, a claim that was confinned when over the course ofapproximately two hoursshe won what appeared to be at least $1,000 playing blackjack and craps.

-6-

VLJCOPE000121


60/71

In setting a finn time for dinner, Mr. Lopez learned that his contact had arranged foraccess to a hospitality room in which he could use the bathroom to freshen up. He anddid so, visiting the room for the sole purpose of using the bathroom. Mr.Lopez denies that he arranged a room, denies he was "comped", and denies absolutelythat he in any way made any improper, aggressive or sexual approach to inthe ten to fifteen minutes they were in the room, or at any other time.The two proceeded to the place they were to meet their dinner companion. He was lateand the two ordered dinner without him. When he did arrive, the three went to thecasino, where wandered off and Mr. Lopez had the planned discussion.Sometime before 11 p.m., Mr. Lopez and started back to Brooklyn, asplanned. Mr. Lopez was not only not drunk, but he had had no alcohol at all. He rarelydrinksThe morning after this entirely uneventful day, sent Mr. Lopez thefollowing text:

Good morning Vito! I was just thinking what a nicenight we has being high rollers! I hope you found a littlerespite last night and also got hone safely! See you in theoffice, we have the 2pm REBNY meeting to go over!7/f112012 10:16:48 AM (emphasis added)

Or this one, sent a day later:We had our staff meeting and I just wanted you to knowthat I'm here to support you and I'll have your back. I'mexcited and love this job, I'm going to show you that.

7112/201211:19:24 AMOr other texts thereafter:

. . . I'm excited and love this job7,,121201211:19:24 AM

. . . I love this job.711412012 1:19:09AM

Perhaps it is not necessary to say that it is very difficult to reconcile a claim that Mr.Lopez made unwanted advances with the fact that sent messages thatentirety belie that anything untoward occurred.

1-

VLJCOPEOOO 122


61/71

A.l3The Purchase ofP/avgirl MagazineMr. Lopez and his entire staffwere invited to the surprise 60th birthday celebration of adear friend of his, a lobbyist whom he has known for over 25 years. Guests wereinstructed that the party was intended as a "roast" and that attendees should bring gaggifts. Someone, not Mr. Lopez, suggested a copy of Playgirl magazine.asserts that she was told to purchase the magazine, to label it for the honoree, and to"read it". None of these claims is true. The acquisition of the gag gift, its labeling and itspresentation to the recipient were all handled by others. was never asked inany way to interact with the gift, nor did she. Instead, sole role in the entirematter was to attend the party, something she enjoyed very much based on her textmessage following the event:

I hope you know how eager I am to be a part of your innercircle and get caught up in battles. Don's party was fun (weshould have invited a teamster to jump out of the cake!)and this is really nice too!

) 6/1112012 9:48:51 PM .

began her employment in the District Office as a legislative aide. She wasimmediately assigned to act as the liaison to the Orthodox Jewish Community; Rheingoldhouses; and the general Williamsburg area, including several Catholic parishes. She wasalso made responsible for Mr. Lopez's scheduling.began to discharge her assigned tasks slowly but adequately. She inparticular took an interest in learning more about the culture and customs of the Hasidiccommunity.

Though enthusiastic, there soon emerged a problem with her work: She frequently failedto sequence facts accurately, so, for example, she was given information concerning thepoor health of he daughter of a leader of one of the significant Hasidic communityleaders and was asked to relay the information to Assemblyman Lopez. She did so, butwrongly identified the affected person. As a consequence, Assemblyman Lopezcontacted the wrong father, tried to empathize about a sick child when there was none,and missed the opportunity to be supportive of a constituent who was suffering. Onanother occasion, she reported to Assemblyman Lopez a policy change affecting a localHasidic community. When researched, however, it turned out that the policy change hadno impact on any community in Mr. Lopez's district and concerned another communityentirely

VLJCOPEOOO 123


62/71

During the approximately twelve weeks that she was on staff, generally gother work done and seemed pleased with her role and interactions with other office staff.So pleased, in fact, that she began to express her desire to pursue a career in politics. Herspecific first objective was to take over as Mr. Lopez's chiefof staffat the end of he yearshould his current chiefofstafffollow through on an intention to move back to theDominican Republic. As told Mr. Lopez in a text:

Thank you for everything tonight. I know that you don'twant me to thank you but I'm going to do it anywaybecause I am thankful that you recognize thatI love my job, politics in general and that we can talkcandidly over beer. I enjoyed it and we'll do it often. I wantto be your right hand person so I'm going to do what I think is the right to eventually be thatperson.

6125.20121:49:51 AM. continued) 6/25l20121:50:06 AM, continued 6/25/2012

1:50:09AM

8.1, 8.13, 8.14Mr. Lopez Encouraged/Instructed Staff to Dress in a Particular WaxAs noted above in Section A.2, 8, 9, 12, and other staff dress according towhat they determine is appropriate, though Mr. Lopez has asked staff to be cognizant ofthe mores of the various constituency groups. He noted that consciously (andappropriately) dressed conservatively when meeting with religious leaders, usually twicea week. dress, hair style and general appearance played no role in her workassignments or functioning in the office. And at no time did Mr. Lopez suggest thatcome to work topless. Indeed, it is difficult to know how to take such a claim: theBrooklyn District Office is staffed by at least six persons at all times. A typical day seesnot only those staff members, but dozens of constituents appearing without notice orappointment to provide information or to seek assistance. Deliveries are made, items arepicked up, things are dropped off. It is just impossible to imagine that such a commentcould have been made, or, if it were, taken seriously

VLJCOPEOOO 124


63/71

B.lMost Attractive Person in tbe Officecontends that Mr. Lopez told her that he considered her to be "the mostattractive person in the office". Mr. Lopez does not recall saying it.

8.4Mr. Lopez "Insisted that She Dine Alone with Him and Drink Alcohol"In the introduction section above, reference is made to a pattern of errors by .While Mr. Lopez found these errors disconcerting, it was who chose toconfide personal details about herself to Mr. Lopez. She asked to see Mr. Lopez aloneand when he agreed to do so, approximately one month into her tenure, she infonned himthat she suffers from attention deficit disorder, and though she had (inexplicably) stoppedtaking the medication prescribed to address the problem, she was "working on it''.In relaying this unsolicited information, she became extremely emotional. Mr. Lopez inresponse advised her on how to work on correctly categorizing infonnation. She agreedto take his advice. However, she begged Mr. Lopez to keep her condition a secret and heagreed to do so .To assure that she was both correctly keeping track ofhis schedule and completing theother tasks assigned to her, the two agreed to meet regularly to review assignments.Because was extremely agitated at the thought that anyone else in the officewould learn of her condition, the meetings were held out of the office. Thus, though Mr.Lopez regularly dines with staff, usually with as many as can make it, it was ,not Mr. Lopez, who insisted that the two meet outside the office for dinner and not bejoined by other staff. sought out these meetings aggressively, and they metthree or four times, always at locations and at times chosen byfunction as scheduler enabled those meetings to occur, although several were cancelledbased on Mr. Lopez's work conflictsOn several of those occasions, she chose on her own to bring wine or beer. As withhe denies ever touching or engaging in inappropriate conduct.B.S, 8.6, 8.10, B.U, 8.12Meetings Turning Into "Therapy Sessions"The accusation is also made that meetings between the two turned into unsolicited"therapy sessions". That is not inaccurate, though that turn of events was neithersolicited by Mr. Lopez nor welcomed by him. During these working dinners,would bring up family issues that had no place in the work environment. She chose todiscuss her brother's behavioral issues and in particular that he had recently beenexcluded from the grandmother's public housing apartment.

-10-

VLJCOPE000125


64/71

She also volunteereddetails of her problems with her boyfriend, another unwelcometopic, and repeatedly shared that her boyfriend did not like social causes, politics orcommunity work, causing an obvious conflict with stated interestsMr. Lopez denies that he, as asserted, used in tum to unburden himself withrespect to his personal life. Indeed, when he was too busy to meet with her, she pursuedhim:

Hey Vito - I left you a voicemail message and I don't knowif you're just no longer interested in or too busy but I wasjust reminding you of our 8:00 meeting if you wanted totalk. I'd like to. Let me know!6'27'2012 7:01:38 PM. continued6;27,2012 7:01:48 PM

And she certainly appreciated it when he did make the time:I sincerely hope you know that I not only appreciate butenjoy your interest in me and just hanging out.

) 6125/2012 1:50:27AMThank you, Vito, for a really great night! Sincerely,

61291201212:19:35 AMThank you for checking in on me all night, it was reallyreally nice of you.

71101201210:25:19 PMB.7, B.8, 8.9Tbe Sugestion that They Travel TogetherMr. Lopez denies asking to travel with him, at all or under any conditionsAt one of the dinner meetings described above, , for her own reasons and withno suggestion or encouragement from Mr. Lopez, brought a six pack of beer with her.He drank one; she drank more than one.During the course of that dinner, she volunteered that she spoke French and for thatreason was thinking about traveling to Quebec. Frankly, Mr. Lopez did not even knowwhere Quebec was or that French was spoken there. It was she who suggested that heaccompany her, a suggestion he never took seriously and as to which there was no followup .

-11-

VLJCOPEOOOI26


65/71

Mr. Lopez is certainly puzzled by the pattern to the complaints of both women. Forreasons Mr. Lopez can only attribute to and getting together ontheir complaint, also claims that Mr. Lopez suggested they travel together toRussia. Mr. Lopez has never had any plans to travel to Russia and never asked either ofthem, or anyone else, to go with him to Russia. He has no idea where this notion camefrom. He does recall that in connection with her interest in the Hasidic communitysuggested that she and Mr. Lopez have dinner at a Russian night club, inBrooklyn. They never did so.Nor did he suggest taking her to Atlantic City, another suspected cross-over fromconsultation with .B.15Calling the PoliceThe claim that Mr. Lopez instructed to go shopping with an intern so that theintern could teach something about how to dress is denied. It does appear thatmother phoned the police to claim that the intern was in imminent dangerbecause the police responded to the complaint and did not hide the reason they werethere. has never met Mr. Lopez and to Mr. Lopez's knowledge has neverbeen in the District Office.On the day she phoned in the complaint, police arrived at the Office and interviewed theintern. We understand that the intern denied being in any danger or that Mr. Lopez (oranyone else) acted inappropriately to her. The police on the scene informed Mr. Lopezthat the woman who phoned was "crazed" and that the complaint was likely really "aboutsomething else". Needless to say, no arrests were made or any wrongdoing found.Thereafter, repeatedly phoned the intern in an effort to enlist her in supportingthe complaint. Despite every effort to get to understand that the intern hadnothing to complain about, pestered the intern for some time.

ConclusionMr. Lopez's staff, including and , dress as they wish. Therewere no sanctions for dressing in any particular manner and no outbursts for doing so. Itis certainly so that has a strong will. To the extent she was criticized by Mr.Lopez, it was not for her dress, but for her ham-handed marmer of addressing other staffmembers and even constituents. Nevertheless, he was both tolerant and supportive .Mr. Lopez's core concern is the proper functioning of both his District Office inBrooklyn and his Albany office. Staff members are promoted and rewarded based onlevel of service to the community and job performance. Indeed. he always tries topromote from within. witnessed by his current Brooklyn chiefof staff. started

12-

VLJCOPEOOOI27


66/71

as a legislative aide approximately three years ago. Based on performance andcommitment to the community, was promoted to deputy chiefof staffand thento chiefof staff. understands that Mr. Lopez's goal is to maintain aprofessional work atmosphere encouraging camaraderie among staff and a high level ofservice to the community. Any claim that promotions and raises are tied to any factorother than job performance is unsupportable.

Lessons LearnedAs noted, Mr. Lopez is deeply shocked by the claims made here, in particular becausethey are entirely inconsistent with the feedback he got both directly from these employeesand from others on the staffand in the community who have reported back how happyeach has said she was with her job. If anything, he has come to understand that he mayweJI fail to understand that what he says and does, no matter how innocently intended,can be misunderstood by others ofa different generation and experience. He certainlyintends to examine his conduct and endeavor to understand how his actions may beperceived rather than focus solely on his own intent.Some of he claims, however, cannot be attributed merely to different world views andexperiences. He either did or did not attempt to kiss in Atlantic City. Andhe did not.Submitted 8/15/12

-13-

VLJCOPEOOO 128


67/71

Calendar

VLJCOPEOOOJ29


68/71

" Sunday1 Apr 2012

18

15

22VL,Limited TimeBased in

AlbanykiL- Out ot townlc:olombian Lawyerjconf .


Albany

Monday12

9

HI

23VL,Limited Time

Based inAlbany


Albany

April 2012. Tuesday Wednesday3 4

10 11

17 181/L, VL,Limited Time Limited Time

- Baaed in Based inAlbany Albany

24 25VL VL,Limited Time Limited TimeS.aed in Based inAlbany Albany

1May 2

Thursday5

12

191/L,Limited TimeBased inAlbany

26VL,Limited Time

Based inAlbany

13

VL-Vito Lopez

Friday Saturday5 7

13 14

20 211/L 1/L,Limited Time Limited Time

- Baaed in B&fled inAlbany Albany

VL- Out o! t:own VL- Out of townColombian Lawyer olombian Lawyebonf. conf.

27 28VL VLLimited Time Limited Time

- Sued in Baaed inAlbany Albany

VL HopeReichbach event

f4 15

VLJCOPEOOO 130


69/71

.; 1 Sunday ', Monclayn . ; Tuesday29Apr 2012 30 1 May

VL Limited Time

- Based inAlbany

6 17 8VL,Limited Time

VL, VL,Limited Time Limited Time

Based inAlbany

VL- w/ Sister(al l day)

13VL- Hospital

- Based inAlbany

Based inAlbany

VL SloanKettering

(Dental Clinic)

14VL Hospital

Based inAlbany

20 21VL Bed res t VL Becl res t

p n e u ~ o n i a pneumoniarelated fatigue) related fatigue)

Based inAlbany

Baaed inAlbany

15

22

- Based inAlbany

VL HospitalBased inAlbany

VL AlbanyMeeting

Based inAlbany

27 28 29VL LI Vacation VL Ll Vacation VL LI vacation( tooth problem) ( tooth problem) ( tooth problem)

Based inAlbany - Based inAlbany

Based inAlbany

May 2012Wednesday ' T h u n ~ d a y

VL-Vito Lopez

Friday Saturday.2 l:f 5

VL,Limited Time

Based inAlbany

VL,Limited Time

Based inAlbanyVL Bltyln.

Unidos

VL, VL,Limited Time Limited Time

Based in - .Based 1nAlbany Albany

VI.- VL- bday Communion

(granddaughter) (granddaughter,

9 10 11 12

16

23

30

VL, VL, VL- 102 rever VL- 104 FeverHospitalizedimited Time Limited TimeBased in

Albany

VL Hospital- Based inAlbany

VL ReturnedHome

- Based inAlbany

Based inAlbany

17

VL 10 1 FeverBased in

Albany

VL- HospitalBased in

Albany

18

Based inAlbany

VL HospitalBAsed in

Albany

19

Based inAlbany

VL- Bed rest(pneumoniarelated fatigu

Ba.eecl inAlbany

24 25 i'Z6VL LI Vacation VL LI Vacation VL- LI Vacatio(tooth problem) ( tooth problem) ( tooth problem

31

Based inAlbany

- Based inAlbany

VL Kings Cty.Damoeratic

Dinner

Based inAlbany

1 Jun

Based inAlbany

PDF C alend ar by ......,,pcllcalendar.GO

VLJCOPE000131


70/71

June 2012. Sunday. ; Monday "'" TuesdaY ' Wednesday27 May2012 28 29 30

3VL

Recital(went home earl)w/ tooth prob. l

10VL

Bday party(grandson!

17VL- ra ther ' s

Day w/family in 1.1

24

4VL AlbanySession

11VL- AlbanySese io n

18VL AlbanySees io n

25

5VL AlbanySession

and bday party(went home early

tooth problem

12VL- AlbanySession

19VL- Albanysession

26VL- Demo. Club VL- Demo. Club VL Demo, Club(Prep fo r cong. (Prep fo r cong. (Prep fo r Cong.Primary, work Primary, work Primary, worklate on election la te on eleetior la te on electionac t ivi t i ee l ac t ivi t i es ) ac t ivi t i es )

6VL- Albanysession

13VL AlbanySession

20VL- AlbanySession

27

Thursday31

7

VLVito Lopez

Friday1 Jun

8

1110ve s toBrooklyn af te rsi x weeksbased inAlbany

9

Saturday

VL- Bklyn.Unidos VL- Pompeii(tooth problem! Players Musical(went home early

14

21

VL AlbanySession

P'undraiserDinner

VL- AlbanySession

28

lw/ tooth p:wblem

15 16VL NassauCounty Fundraia r

Dinner

VL- DinnerParty

(1 2 people)

22 23VL- Demo. Club VL Demo. Club!Prep fo r Cong. (Prep fo r CongPrimary, work ~ r i m a r y , workla te on electior ate on elect ioac t ivi t i es ! "c t ivi t i es

29 30July 4

vacationVL- Visi t Gus (sick friend)

POF Calond8f by _....f\d(calendr.co

VLJCOPEOOOI32


71/71

July 2012VLVito Lopez

f : - o : ~ ~ - . . . . . ! : . . . . . . . . " ' " - - ' l , . - - _ ; ; , ~ ; : . : : , - 4 . . . . ; _ . . . . : . ; : : . : . = . : : : : : : . ; _ 4 : - _ W ~ e d : . : n . : . : = . d : : . : I ~ Y : _ j __ ! ~ U ~ ! ! _ , , f " ~ F r l ~ L ~ . Ju ly 4th Ju ly 4thVacation

VL Peconic, LI VL- Peconic, LI VL Peconic, LI VL- Peconic, LI

9An is t e d in VL Petition

Bind1ng P e t i t i o n ~ fi l lng &ta l l day) challenging

15 18

specs onopponents

10VL- Petitionfi l ing &challengingspec& onopponents

L, AtlanticCity

VL FUneral VL- Htg. w/ Last DayService for Russian LeadersReichbach{26pml Frank CaroneSpeca on t7: 30pmllpm)'District Pet i t io a

[ ~ ....,123

11VL Peti t ionh l ing &challengingspecs onopponents

Vacation

12I lL- Peti t lonf i l ing 'hallengingspecs onopponents

*various appts.from 6pm-

'tO

VL- Comm. based .VL Assisted inAgency staff Binding P e t i tFarewell Party la l l day)

13 14VL Canarsie- La at oay Pol. Mtg. onJud9e imorning

VL Death of. f r iendIvis i tI w/l wife fromlpm-7pml

i~ --- 2',-----

Vito Lopez response to JCOPE

Documents

Transcript of Vito Lopez response to JCOPE